OAG nixes motion to compel govt to produce police report, statements

The Office of the Attorney General opposes the Office of the Public Defender’s motion to compel the government to produce the police report, witness statements, and any other physical evidence prior to the continuation of a preliminary hearing in the case against a man facing charges of stealing and forging checks.

Assistant attorney general Jonathan L. Wilberscheid said that, based on the absence of any constitutional right to discovery prior to a preliminary hearing, and because no Commonwealth rule or statute provides for such early discovery, and because of the limited nature of the preliminary hearing, the Superior Court should deny the OPD’s motion to compel in the case against Nelsin A. Saimon.

The due process clause does not include a right to avoid trial in the absence of probable cause, said Wilberscheid in the government’s opposition to the motion filed Tuesday last week.

Wilberscheid said for over 100 years, the U.S. Supreme Court has consistently held that due process is not violated by subjecting a defendant to charges without a preliminary hearing.

The prosecutor said there is no basis in Commonwealth rule or statute to compel pre-preliminary hearing discovery.

He said the right to counsel at a preliminary hearing includes only a limited right of cross-examination based on finding probable cause.

The prosecutor said defendant has not explained how obtaining the discovery he seeks in this case will help determine probable cause, rather than simply shifting up the government’s timetable to provide discovery in the ordinary course.

In Saimon’s motion to compel, assistant public defender Heather M. Zona asked the court to order the government to provide the police records and information that a police detective had said he used to refresh his recollection and/or familiarize himself with the case.

Zona said that materials used by any witness to refresh his or her recollection must be provided to Saimon. Failing to do so would constitute an interference with Saimon’s right to effective assistance of counsel and right to cross-examine witnesses, she said

Saimon was arrested last Jan. 27 on charges of theft and forgery. The preliminary hearing was held last Feb. 5. Associate Judge Joseph N. Camacho adjourned the hearing to allow the parties to brief the issue.